92 Decision Citation: BVA 92-12491
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-51 407 ) DATE
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THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for an eye disorder
manifested by diminished visual acuity.
3. Entitlement to service connection for an inguinal hernia.
4. Entitlement to service connection for an intestinal
disorder.
5. Entitlement to service connection for arthritis.
6. Entitlement to service connection for pulmonary
tuberculosis.
7. Entitlement to service connection for bronchial asthma.
8. Entitlement to service connection for a disorder
manifested by loss of memory.
9. Entitlement to service connection for avitaminosis with
malnutrition.
10. Entitlement to service connection for hypertensive
cardiovascular disease with angina pectoris.
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had recognized service from July 1944, until
October 1945. The service department has certified that he
was not a prisoner of war.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a rating decision in July 1991 of the
Manila, Philippines, Regional Office (hereinafter RO).
The veteran's notice of disagreement was received on
October 11, 1991 and a statement of the case was issued on
October 24, 1991. The veteran's substantive appeal was
received on November 15, 1991. A rating decision on appeal
of December 2, 1991, confirmed and continued the denials and
the issues were certified for appellate review on that same
date. The case was received at the Board on December 16,
1991, and docketed on December 18, 1991. The veteran has
not been represented during the appellate process.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended that the disabilities for which service
connection is claimed were incurred during combat with the
enemy or manifested within several months after service
discharge. It is requested that the veteran be afforded a
prisoner-of-war protocol evaluation and that he be afforded
VA examinations to verify the existence of the claimed
disorders.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against the veteran's claims for service connection for
hearing loss, an eye disorder manifested by diminished
visual acuity, inguinal hernia, an intestinal disorder,
arthritis, pulmonary tuberculosis, bronchial asthma, a
disorder manifested by loss of memory, avitaminosis with
malnutrition, and hypertensive cardiovascular disease with
angina pectoris.
FINDINGS OF FACT
1. The veteran had recognized service from July 1944, until
October 1945.
2. The veteran was not a prisoner of war.
3. The earliest evidence of a pulmonary disability,
including pulmonary tuberculosis or bronchial asthma is
years after active service in April 1950.
4. The earliest evidence suggestive of an intestinal
disorder is years after active service in March 1952.
5. The earliest evidence suggestive of hearing loss or
cardiovascular disease, including hypertension, is years
after active service in February 1962.
6. The earliest evidence of an inguinal hernia is decades
after active service in May 1991.
7. There is no evidence establishing that the veteran has
an eye disorder manifested by diminished visual acuity,
arthritis, a disorder manifested by memory loss or
avitaminosis with malnutrition.
CONCLUSIONS OF LAW
A hearing loss, an eye disorder manifested by diminished
visual acuity, an inguinal hernia, an intestinal disorder,
arthritis, pulmonary tuberculosis, bronchial asthma, a
disorder manifested by loss of memory, avitaminosis with
malnutrition, and hypertensive cardiovascular disease with
angina pectoris were not incurred in or aggravated by active
service nor may a sensorineural hearing loss, arthritis,
pulmonary tuberculosis or hypertensive cardiovascular
disease be presumed to have been so incurred. 38 U.S.C.
§§ 1101, 1110, 1112, 1113, 1154 (1992); 38 C.F.R.
§§ 3.304(d), 3.306(b)(2), 3.307, 3.309 (1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran's claims are "well grounded" within the meaning
of 38 U.S.C. § 5107(a) because they are plausible if taken
solely at face value.
Although the veteran reported that he had been treated by a
private physician from 1945 to 1948 for abdominal and
intestinal pains (apparently related to his claim for
service connection for an intestinal disorder and an
inguinal hernia), he also reported that physician is now
deceased.
With respect to the request that the veteran be afforded a
VA examination and a prisoner-of-war protocol evaluation to
verify the existence of the disabilities for which service
connection is claimed, we initially observe that the veteran
was not a prisoner-of-war. Furthermore, it is not the mere
existence of those disabilities which establishes a basis
for a grant of service connection. Rather, it is the
evidentiary record establishing incurrence, even if on a
presumptive basis, or aggravation of the disabilities during
active service which is not shown by the evidence now of
record. Such an examination, even if verifying the
existence of all of the disabilities for which service
connection is now claimed, would not serve to relate the
disabilities to his period of recognized service decades
earlier or to otherwise supplant the absence of evidence of
incurrence or continuity of symptomatology.
We are otherwise persuaded that all relevant facts have been
developed and there is no further duty to assist the veteran
in developing his claims as required by 38 U.S.C. § 5107(a)
Generally, service connection requires that a disease or
disability be incurred in or aggravated by active service.
38 U.S.C. § 1110.
Where, as in this case, the veteran served for more than
ninety (90) days during a period of war, and it is shown
that he manifested a sensorineural hearing loss, arthritis,
pulmonary tuberculosis or cardiovascular-renal disease,
including hypertension, to a compensable degree, such
diseases will be presumed to have been incurred during
service even if there is no evidence of the diseases during
service. All the above disabilities, except for pulmonary
tuberculosis which has a three year presumption period, are
accorded a one year presumption period. 38 U.S.C. §§ 1101,
1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Addressing specifically the claim of service connection for
avitaminosis with malnutrition, we observe that avitaminosis
is a disability specific to prisoners of war. In such
circumstances there is a lifetime of presumption that such a
disability is presumed to have been incurred in service if
manifested to a degree of 10 percent or more at any time
after service. 38 U.S.C. §§ 1112, 1113 (1992); 38 C.F.R.
§§ 3.307, 3.309 (1991). However, in this case there is no
evidence that the veteran was ever a prisoner of war during
World War II. Rather, the appropriate service department
has verified that the veteran was not a prisoner of war and
even the veteran has reported in his claim, received in
April 1991, that he had never been a prisoner of war.
Consequently, he is not entitled to a presumption with
respect to grants of service connection for traumatic
osteoarthritis or avitaminosis with malnutrition shown at
any time after service and, equally important, there is
virtually no clinical evidence of those disabilities at any
time.
With respect to the remaining claims for service connection,
the veteran has suggested that those disabilities were
incurred during combat. The records referable to his period
of service consist of a processing affidavit of September
1945, an affidavit for Philippine Army personnel of March
1946, and an undated separation examination. The processing
affidavit and the affidavit for Philippine Army personnel
indicate that he engaged in combat during World War II.
However, the undated separation examination revealed that
his abdominal viscera, cardiovascular system, and lungs were
normal and that there was no musculoskeletal defect. His
blood pressure was 120/70 and a chest X-ray was negative.
His uncorrected visual acuity was 20/20 in the each eye and
his hearing was 15/15 in each ear, and those levels are
normal. There is no other contemporaneous evidence of
incurrence of any disabilities during active service.
Despite the foregoing, under 38 C.F.R. § 3.306(b)(2), due
regard is to be given the places, types and circumstances of
a veteran's service and particular consideration is to be
accorded any combat duty or other hardships of service. For
veterans, such as in this case, who engaged in combat, the
adverse effect of there being no contemporaneous service
clinical records of incurrence of disease or disability can
be overcome by satisfactory lay or other evidence which is
sufficient proof of service incurrence or aggravation if
otherwise consistent with the circumstances, conditions or
hardships of service. 38 U.S.C. § 1154; 38 C.F.R.
§ 3.304(d). However, we are not required to accept every
bald assertion made by a veteran as to service incurrence or
aggravation of a disability nor do 38 U.S.C. § 1154 and
38 C.F.R. § 3.304(d) create a presumption in favor of combat
veterans in determinations of service connection.
Smith v. Derwinski, U.S. Vet. App. No. 90-635 (January 31,
1992). Rather, we must weigh and consider the entire
evidentiary record in light of governing law and
regulations. This means that we must also consider evidence
other than the veteran's statements as to the time of onset
of the claimed disabilities, as well as any evidence which
may suggest other possible etiology of the claimed
disabilities.
In this case, a May 1991 statement from Dr. F. C. Jusay,
reflects that the veteran was seen on four occasions during
the period from April 1950 until May 1991. In April 1950 he
had developed hemoptysis but no X-ray facilities were
available. The diagnosis was moderately advanced pulmonary
tuberculosis for which he was subsequently treated for six
months. In March 1952 he complained of nausea, vomiting,
and epigastric pain which was felt to be due to medication
for tuberculosis. In February 1962, he complained of
dizziness, left-sided chest pain, ringing of the ear and
easy fatigability. After an examination the diagnosis was
cardiovascular hypertension with angina pectoris. In May
1991 he complained of deafness, ringing of the ears, easy
fatigability, wheezing, coughing up blood streaked sputum,
shortness of breath, general body weakness, and a painful,
palpable mass under the left upper inguinal area which was
reducible. After an examination the diagnosis was pulmonary
tuberculosis, minimal with bronchial asthma.
Based on Dr. Jusay's May 1991 statement it can be seen that
the earliest evidence of pulmonary disability, including
bronchial asthma or pulmonary tuberculosis is in 1950, years
after the veteran's recognized service. The earliest
evidence of an intestinal disorder is in March 1952 at which
time it was felt that symptoms of nausea and vomiting were
due to medication taken for nonservice-connected pulmonary
tuberculosis. There is no further evidence of nausea or
vomiting. Even if the veteran's ringing of an ear in
February 1962 is suggestive of a hearing loss reported in
May 1991, this also is many years after active service.
Likewise, the first evidence of an inguinal hernia was in
1991, and the first evidence of cardiovascular disease and
hypertension as well as angina pectoris is in 1962, many
years after active service and in this connection, we note
that his blood pressure was normal at service discharge.
Overall, there is no evidence of a disorder manifested by
loss of memory, arthritis, avitaminosis with malnutrition,
or an eye disorder manifested by diminished visual acuity.
We do not find credible the veteran's stark assertion that
some of the disabilities claimed (although it was not
specified which disabilities) were incurred during combat.
In this regard, he has offered no specific information as to
the manner or means by which any of the claimed disabilities
were incurred as a result of combat. Consequently, we
cannot consider the veteran's statements as satisfactory lay
of evidence of the incurrence of any of the claimed
disabilities during combat.
Since all pertinent evidence has been assembled, it is the
Board's responsibility to determine whether the evidence
supports the veteran's claims or is in relative equipoise,
with the veteran prevailing in either case. In this
particular case, however, it is our determination that the
evidence preponderates against the veteran's claims and
that, therefore, the claims must be denied. 38 U.S.C.
§ 5107; Gilbert v. Derwinski, U.S. Vet. App. No. 89-53
(October 12, 1990).
ORDER
Service connection for hearing loss, an eye disorder
manifested by diminished visual acuity, an inguinal hernia,
an intestinal disorder, arthritis, pulmonary tuberculosis,
bronchial asthma, a disorder manifested by loss of memory,
avitaminosis with malnutrition, and hypertensive
cardiovascular disease with angina pectoris is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
URSULA R. POWELL PAUL M. SELFON, M. D.
LAWRENCE M. SULLIVAN
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.